Alabama House Joins Florida and Tennessee to Advance Unconstitutional Expansion of Death Penalty that Advocates Say Would Harm Children

On February 11, 2025, the Alabama House of Representatives vot­ed 86 – 5, with nine absten­tions, in favor of a bill that would expand the use of the death penal­ty to those con­vict­ed of the rape or sodomy of a child under the age of 12. This bill will be head­ed to the state Senate. If passed, the law would direct­ly vio­late United States Supreme Court prece­dent estab­lished in Kennedy V. Louisiana (2008), which found the death penal­ty an uncon­sti­tu­tion­al form of pun­ish­ment for the rape of a child that does not intend to or result in death. Florida and Tennessee have passed sim­i­lar leg­is­la­tion autho­riz­ing the death penal­ty for sex crimes against chil­dren that have not result­ed in death, while at least five oth­er states and the fed­er­al gov­ern­ment have attempt­ed, but failed, to pass this kind of leg­is­la­tion in the past. 

The bill’s spon­sor, Representative Matt Simpson (R), a for­mer pros­e­cu­tor, acknowl­edged that the leg­is­la­tion is uncon­sti­tu­tion­al but told his col­leagues in a com­mit­tee hear­ing that his inten­tion is for the Supreme Court to revis­it its deci­sion in Kennedy. Among oth­er con­sid­er­a­tions, the 2008 Kennedy Court not­ed that just six states had passed statutes that allowed cap­i­tal pun­ish­ment for child rape at the time the case was heard, while a vast major­i­ty of death penal­ty states had removed these laws from their statutes. As impor­tant, pow­er­ful evi­dence from child advo­cates and those who work with sex­u­al assault vic­tims per­suad­ed the Kennedy Court that mak­ing the crimes death-eli­gi­ble could inflict fur­ther harm on child vic­tims. Because child sex crimes are most often com­mit­ted by fam­i­ly mem­bers or close fam­i­ly friends, advo­cates point­ed out that the pos­si­bil­i­ty of a death sen­tence would make fam­i­ly mem­bers less like­ly to report the crimes. There would be incen­tive to kill child vic­tims, to elim­i­nate the sole wit­ness to the crime, the advo­cates also not­ed. And chil­dren would be retrau­ma­tized by the intense expe­ri­ence of par­tic­i­pat­ing in a cap­i­tal tri­al and appeals, which would delay their abil­i­ty to heal from the experience. 

For all these rea­sons, Justice Anthony Kennedy, writ­ing for the major­i­ty, stat­ed, ​“Based both on con­sen­sus and our own inde­pen­dent judg­ment, our hold­ing is that a death sen­tence for one who raped but did not kill a child, and who did not intend to assist anoth­er in killing the child, is uncon­sti­tu­tion­al under the Eighth and Fourteenth Amendments.”

Several Alabama state law­mak­ers voiced con­cerns about this bill, from dif­fer­ent per­spec­tives. Representative Thomas Jackson (D) argued, ​“You can’t be pro-life and [be] killing peo­ple.” Rep. Simpson coun­tered that, ​“I believe you have a right to life, but your actions can cause you to lose that right.” Rep. Simpson also argued that the threat of the death penal­ty will deter peo­ple from com­mit­ting these acts. Representative Kenyatté Hassell (D) found the bill ​“extreme” in this regard. Representative Patrick Sellers (D), who vot­ed yes on the bill, those that argue against the death penal­ty and life with­out parole for such crimes do not under­stand what it is like to ​“stand in the place of a father, or a moth­er, and your child has been vio­lat­ed and you can’t do any­thing.” As the law cur­rent­ly exists in Alabama, first-degree rape and sodomy are both pun­ish­able by up to life in prison with­out the pos­si­bil­i­ty of parole.

Representative Phillip Ensler (D) raised the pos­si­bil­i­ty that the law, if passed, would be chal­lenged in court. He added that ​“it just seems fis­cal­ly irre­spon­si­ble to pass some­thing that we’re going to ask tax­pay­ers to defend when, yet again, peo­ple are hav­ing a hard time pay­ing for eggs, pay­ing for gas, pay­ing for milk.”